Despite tweets proclaiming the death of the attorney-client privilege, the government’s recent seizure of items from Michael Cohen, Trump’s personal attorney, actually serves to preserve and engender respect for the attorney-client privilege by demonstrating the limits of the privilege. The privilege is just that – a privilege, not a right – and the highly-publicized search of Cohen’s office, home, and hotel room reassures the public that an individual cannot hide behind the attorney-client privilege simply because they place an “Esq.” after their name. Even assuming the privilege applies in this case – which given recent revelations of the nature of the lawyer’s activity is debatable – the crime-fraud exception may well “trump” the privilege. That exception, which applies when a client or the lawyer seeks to use the attorney’s services or advice to commit wrongdoing, prevents the cloak of privilege from concealing communications engaged in for fraudulent or illegal purposes. Contrary to recent partisan declarations, this limit on the privilege, in addition to the procedural and legal safeguards that the government must navigate to seize materials from an attorney, insures public trust in the role of lawyers and the appropriate role of the privilege. If lawyers expect to continue to hold a trusted role in society, the proper contours of the important privilege with which they are entrusted needs to be understood and guarded. The crime-fraud exception prevents the exploitation of the attorney-client privilege, which would undermine the public’s respect for the privilege.
The Purpose of the Crime-fraud Exception
The crime-fraud exception can be traced back to the late-1800s. It is a creature of common law and deems attorney-client discussions concerning the intention to engage in wrongdoing unworthy of protection. According to Wigmore’s treatise on evidence, the exception exists because the aims of the attorney-client privilege “cease to operate at a certain point, namely, where the desired advice refers not to prior wrongdoing, but to future wrongdoing.” The attorney-client privilege is meant to encourage individuals to communicate freely and candidly with their attorneys without fear that their secrets will be exposed or subject them to prosecution. Where the secrets relate to illicit future purposes, however, the law is well-established that the privilege must yield. As stated by the Supreme Court, “A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told.”
The crime-fraud exception to the rule that attorney-client communications are sacrosanct assures the public that an attorney cannot be inserted into ongoing improper conduct merely as a shield to the government learning about the misconduct. The exception protects the integrity of the privilege by giving the public confidence that the privilege, when asserted, is appropriately applied.
The Cohen case is not the first time the crime-fraud exception has arisen during the Trump presidency. In October 2017, Chief Judge Beryl A. Howell of the United States District Court for the District of Columbia held that the crime-fraud exception to the privilege allowed Special Counsel Robert Mueller the right to question the lawyers of Paul Manafort, the lobbyist and political consultant indicted for conspiracy against the United States, conspiracy to launder money and various other crimes related to his business relationships with a pro-Russian government in Ukraine. Specifically, the Court ruled that Special Counsel lawyers could question Manafort’s lawyers about his allegedly misleading responses to questions from the Justice Department.
The Cohen Search and Seizure
Earlier this month, the United States Attorney’s Office for the Southern District of New Yorkobtained a federal search warrant which resulted in the FBI’s raid of Michael Cohen’s law office, home, hotel room in New York City and safe deposit boxes, as well as two cell phones. The attorney, who has held a number of positions within the Trump organization and served as Donald Trump’s personal attorney and spokesperson, admitted earlier this year that he facilitated the payment of $130,000 to Stormy Daniels so that she would not disclose an alleged affair with Trump in 2006.
Federal prosecutors say that Cohen has been under investigation for months for a range of crimes that “largely center on his personal business dealings.” Media reports indicate that the crimes being investigated may include bank fraud, wire fraud, and violations of campaign finance law in connection with the payment to Stormy Daniels. The government’s warrant also may have sought communications related to disclosure of the now-infamous Access Hollywood tape and payments made or facilitated by Cohen to another woman on behalf of another prominent Republican.
Both Cohen and Trump filed applications with the Court to stop the government from reviewing the documents, arguing that they should be permitted to review seized materials first to determine whether they were privileged or relevant to the investigation. In response, the government noted that it had taken measures to avoid violating the attorney-client privilege and planned to have a taint team review the material for privilege determinations. On Monday, April 16, after a lengthy hearing attended by Cohen, Stormy Daniels and attorneys representing Trump, Southern District of New York Judge Kimba Wood denied the motions made by Cohen and Trump, stating that she had “faith in the Southern District prosecutors [and] that their integrity is unimpeachable.” Judge Wood, however, left open the possibility that a neutral third-party, referred to as a Special Master, would be appointed to review the documents, taking the request under consideration.
The Cohen Case is No Threat to the Privilege
Almost immediately after execution of the warrant, Trump supporters and conservative media outlets expressed outrage at the seizure of evidence from the attorney, asserting it was a violation of the attorney-client privilege. This knee-jerk reaction fails to recognize the substance and limits of the privilege doctrine. First, the privilege does not apply to each and every communication between a client and his or her attorney. Rather, it protects from discovery those confidential communications made for the purpose of requesting or receiving legal advice. According to public statements made by the President, he had no knowledge of the payment made by Cohen to Daniels, which would mean that he did not seek legal advice from Cohen on this matter and the privilege is not likely to apply.
Further, where an attorney acts beyond the scope of the typical legal representation, as it seems from his own public comments that Cohen may have done, his communications are not likely to fall within the scope of attorney-client privilege. Prosecutors have stated that review of Cohen’s email accounts show that Cohen “is in fact performing little to no legal work.” In such circumstances, Cohen and Trump may not be able to claim a blanket privilege by asserting that Cohen is his lawyer for any and all occasions.
Finally, even if the privilege did apply, the crime-fraud exception to the attorney-client privilege may allow the government to compel the production of communications. If, for example, the communications were made to further violations of campaign finance laws or to fraudulently conceal the true source of the funds paid to Daniels or to deceive a bank as to the purpose of a loan, they likely fall within the important exception to privileged communications.
Application of the crime-fraud exception in the Cohen case is evidence of a system that values and protects the privilege but appropriately will not extend it to protect ongoing illegal conduct. It is an important privilege that should not be diluted to apply to just any communication involving an attorney or to shield criminal behavior.
From The Insider Blog: White Collar Defense & Securities Enforcement.